Heritage Homecare Ltd v Mason

A tribunal must identify a clear factual and legal basis for a finding of direct disability discrimination. Dismissal because of sickness absence and sick notes does not, without adequate reasoning, establish that dismissal was because of disability rather than discrimination arising from disability.

Where knowledge of disability is in issue under Equality Act 2010 section 15, the tribunal must make and explain findings on actual or constructive knowledge. Compensation for loss of earnings must also rest on findings that support the period and level of loss. Material deficiencies in liability findings and compensation may require a complete rehearing before a differently constituted tribunal.

The employee was employed on a series of fixed-term arrangements and was dismissed after providing sick notes recording anxiety with depression. The Employment Tribunal held that her claims of direct disability discrimination and discrimination arising from disability succeeded. It also awarded £1,701 for loss of earnings, while upholding a separate unlawful-deduction claim.

The employer appealed the two discrimination findings and the loss-of-earnings award. The employee accepted that the direct-discrimination finding and the loss calculation could not be supported on the Employment Tribunal's stated findings. The principal remaining issue was whether the Employment Appeal Tribunal could preserve or substitute any finding, or whether the disputed liability and compensation issues required remission.

1. Appeal allowed. The Employment Tribunal's conclusion that the employee had been directly discriminated against was inadequately reasoned. Its findings that dismissal followed sick notes and absence through anxiety with depression appeared capable of describing discrimination arising from disability, but did not disclose a clear evidential basis for the separate conclusion that dismissal was because of disability for the purposes of Equality Act 2010 section 13.

2. The finding under section 15 was also flawed. Knowledge of disability had been raised. The Employment Tribunal made no findings, and gave no reasoned conclusion, on actual or constructive knowledge under section 15(2). The reference to knowledge in its direct-discrimination reasoning could not supply the missing analysis. The EAT did not determine the unpursued justification issue under section 15(1)(b).

3. The loss-of-earnings award lacked supporting findings. The Employment Tribunal had not addressed the consequences of the fixed-term employment, its termination date, or the employee's continuing certified illness. Its use of normal net pay for the claimed period was therefore unsustainable on the findings made.

4. The EAT could not safely substitute a finding dismissing direct discrimination. The factual material did not permit a clear and confident conclusion that such a claim was impossible. Applying the remittal considerations in Sinclair Roche Temperley v Heard [2004] IRLR 763, the case was remitted to a differently constituted Employment Tribunal for a complete rehearing of disability-discrimination liability and all related compensation. The unappealed finding and quantification of unlawful deduction from wages remained in place. No costs order was made.

• Employment Appeal Tribunal — allowed the employer's appeal and remitted disability-discrimination liability and related compensation for a complete rehearing before a differently constituted tribunal.

• Employment Tribunal, Manchester — in written reasons sent on 28 February 2014, upheld claims for direct disability discrimination, discrimination arising from disability and unlawful deduction from wages, and awarded loss of earnings.